Filed 1/23/14 P. v. Hernandez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE HERNANDEZ,

Defendant and Appellant. B244019

(Los Angeles County Super. Ct. No. VA124498)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Dewey L. Falcone, Judge; Lori A nn Fournier, Judge. Affirmed.

John Doyle, under appoin tment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Victoria B. Wilson and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ _____________2 Defendant and appellant Je sse Hernandez appeals from hi s conviction of receiving stolen property. He contends it was error to deny: (1) his Penal Code section 1538.5 motion and (2) his Pitchess motion. 1 We affirm.

FACTUAL AND PROCED URAL BACKGROUND

The issues on appeal do not require a de tailed recitation of the facts. It is sufficient to state that, view ed in accordance with th e usual rules on appeal ( People v.

Zamudio (2008) 43 Cal.4th 327, 357-358), th e evidence established that Gustavo Villegas’s cell phone was taken without hi s permission by an unk nown person sometime in 2009. Three years later, on the evening of April 2, 2012, an unknown person took five

UPS boxes addressed to Robert Sanchez, which had been sitting on the front porch of Sanchez’s Montebello home. Villegas’s cel l phone and three of Sanchez’s five UPS boxes were found the next day in a shed loca ted in the backyard of defendant’s family

home. The home was owned by defendant’s grandfat her, Robert Acosta. Then 32 years old, defendant lived there with his grandfat her, mother and girlfri end; Acosta’s three granddaughters and one great-grandchild also lived in the home. Acosta had given defendant permission to use the backyard shed in which the stolen goods were found, but had since rescinded that permission. With out Acosta’s authoriz ation, defendant had placed a lock on the sh ed to which he had not given Acos ta a key. On April 3, Acosta called 911 after a fight with defendant about, among other things, defendant’s failure to take his things out of the shed. When Deputy Ramirez resp onded to a “family disturbance” report at Acosta’s home, Acosta told Ramirez he suspected that defendant was storing stolen goods in th e shed. Ramirez reported Acosta ’s suspicions to Detectives Escobedo and Valenzuela, who went to Acosta’s home that afternoon to investigate the stolen goods report. Acosta consented to a search of the shed and used his own bolt

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531. All future undesignated statutory references are to the Penal Code.3 cutters to cut off the lock. Villegas’s cell phone and three of Sanchez’s five UPS boxes were found in the shed. Neither Villegas nor Sanchez knew defendant, or any of the other people living in Acosta’s home. Defe ndant was arrested on April 17, after a deputy sheriff found defendant hiding in Ac osta’s car, parked in the garage. Defendant was charged by amended info rmation with two counts of receiving stolen property (§496, subd. (a )); two prior prison term enha ncements were also alleged (§ 667.5, subd. (b)). A jury convicted de fendant of count 1 (S anchez’s stolen UPS boxes), but acquitted him of count 2 (Villega s’s stolen cell phone). In a bifurcated proceeding, defendant stipulated to one enhancement and the People agreed to strike the second. Defendant was sentenced to three ye ars in prison, comprised of the two-year midterm on count 1, plus a consecutive one ye ar for the prior prison term. He timely appealed.

DISCUSSION

A. Denial of Defendant’s Motio n to Suppress Was Not Error

Defendant contends the trial court erre d in denying his section 1538.5 motion to suppress evidence found in the warrantless search of the shed . He argues Acosta did not have actual or apparent authority to cons ent to the search because defendant had exclusive use of the shed. We disagree. “ ‘In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling . . . .’ [Citation.] We ‘defer to its findings of historical fact’ and ‘determine as a matter of law whet her there has been an unreasonable search and/or seizure.’ [Citation.]” ( People v. Dachino (2003) 111 Cal.App.4th 1429, 1432.) It is well-settled that, with consent, a warrantless search is reasonable under the Fourth Amendment. ( People v. Oldham (2000) 81 Cal.App.4th 1, 9.) It is equally wellsettled that a person with joint access or control of property has authority to consent to a search of that property. ( United States v. Matlock (1974) 415 U.S. 164, 172, fn. 7.) Even4 if the consenting person lacks authority, o fficers may rely on his or her apparent authority. ( Oldham, at p. 10.)

In People v. Daniels (1971) 16 Cal.App.3d 36, the issue was whether a mother had authority to consent to a search of her adult son’s bedroom. The court concluded that she

did. “The search of the bedroom used by a son living with a parent who owns the premises of which the bedroom is a part, when made with the consent of the parent, is reasonable, absent circumstan ces establishing the son has b een given exclusive control over the bedroom. [Citations.] Parents with whom a son is living, on premises owned by them, do not ipso facto relinquis h exclusive control over that portion thereof used by the son. To the contrary, the mere fact the s on is permitted to use a particular bedroom, as such, does not confer upon hi m exclusive control thereof. [Citation.] His occupancy is subservient to the control of his parents. [Citations.] He may be excluded from the premises by them at any time. [Citation.] They may enter and search the room at will, or may authorize others to make su ch a search. [Citations.]” ( Id . at pp. 43-44; see also People v. Oldham, supra, 81 Cal.App.4th at p. 9 [father ha d apparent authority to consent to search of bedroom occupied by adult son; son had joint control of bedroom but father, who had right to exclude son from ap artment, had superior control].) Here, the evidence at the s ection 1538.5 hearing, at which Acosta and Escobedo testified, established that Acosta had actual a nd apparent authority to consent to a search

of the shed. Detective Escobedo testified th at when she arrived at Acosta’s home to investigate the stolen goods report, Acosta walked Escobedo throug h the house, into one bedroom, and then into the backyard. In the backyard, Escobedo saw a shed with a pair of sliding doors held together by one or more locks; Escobedo could not recall what kind

of lock or whether there was a chain. Acosta told Escobe do that the shed belonged to him; Acosta had told defendant more than once to remove his things from the shed; defendant had placed a lock on the shed without Acosta’s pe rmission as a result of which defendant was the only person with easy acce ss to the shed. Acosta said he believed defendant was storing stolen g oods in the shed. Illuminating the interior of the shed by shining her flashlight through a three inch gap between the slidi ng doors, Escobedo saw5 some baby items (later determ ined to belong to Acosta’s granddaughter), a guitar, tools

and some boxes. The boxes were labeled with a name and Montebello address which Acosta said he did not recognize. Acosta as ked Escobedo if he could cut the lock off the shed. Escobedo responded affirmatively. While Acosta was getting his bolt cutters, Escobedo called the Montebello police and re quested that they se nd an officer to the address on the boxes to investigate. While Escobedo was waiting to hear back from the Montebello police, Acosta cut open the lock. After doing so, Acosta signed a consent to search form Escobedo gave him. Escobedo then heard back from the Montebello police

with confirmation that the boxes met the desc ription of the boxes stolen from Sanchez’s porch. Escobedo later confir med this with Sanchez. Acosta testified that he gave defendan t permission to use the backyard shed. Acosta did not know who put th e locks on the shed. By April 3, Acosta no longer wanted

defendant to live with him or use the shed, so he called the police to tell them he wanted defendant’s things removed from the shed. Acosta did not recall telling the responding officer (i.e. Ramirez) that defendant was storing stolen goods in the shed. When Detective Escobedo arrived, Acosta took her through the ho use and unlocked the door to

defendant’s room so that Escobedo could look inside. Then he took her to the shed, into which Acosta wanted her to look. Acosta ga ve Escobedo permission to go into the shed after Escobedo told Acosta that she would get a search warrant. Acosta explained that he did not feel that he had to cut open the lo ck, “I didn’t actually – it came from me – actually, the reason that I wanted – I wanted to find out what was there so I was trying to

use the shed because I told [defendant] that I was going to use the shed. I wanted my shed back. [¶] [DEFENSE COUNSEL]: You wanted your shed back, correct? [¶] [THE WITNESS]: Yes. [¶] [DEFENSE COUNSEL]: And so you were using the police officers to get back in to your shed? [¶] [THE WITNESS] : Well, they we re going in, so I let them, yeah.”

This evidence is sufficient to support the trial court’ s finding that Acosta had authority to consent to a sear ch of the shed. It was undisputed that Acosta owned the property on which the shed wa s located and that he did not give defendant permission to6 exclude Acosta from the shed. Defendant’s use of the shed was subservient to Acosta’s and the fact that defendant put a lock on Ac osta’s shed without Acosta’s permission did not alter Acosta’s lawful right of access. Under these circumstances, Acosta had authority to allow poli ce to search the shed.

B. Denial of Defendant’s Pitchess Motion Was Not An A buse of Discretion

Defendant contends the tria l court erred in denying his Pitchess motion seeking complaints against Ramirez (the officer wh o responded to the 9 11 call), Escobedo and Valenzuela (the officers who investigated the stolen goods report) and Sanchez (the officer who arrested defendant). He argues th at the evidence may have made a difference

to the outcome of the section 15 38.5 motion. We find no error. The sole and exclusive means by which c itizen complaints ag ainst police officers may be obtained are the Pitchess procedures codified in Pe nal Code sections 832.7 and 832.8, and Evidence Code se ctions 1043 and 1045. ( Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1539.) A Pitchess motion must include, among other things, an affidavit showing good cause for the di scovery sought. (Evid. Code, § 1043, subd. (b)(3); Brown, at p. 1539; see also Galindo v. Superior Court (2010) 50 Cal.4th 1, 12.) “To show good cause as required by [Evidence Code] section 1043, [the] declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges” and “articulat e how the discovery sought ma y lead to relevant evidence or may itself be admissible direct or imp eachment evidence [citations] that would support those proposed defenses.” ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024 ( Warrick ).) The declaration “must also descri be a factual scenario supporting the claimed officer misconduct.” ( Ibid .) The threshold showing of good cause required to

obtain Pitchess discovery is “relatively low.” ( City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83, 94.) We review Pitchess orders under the abuse of discretion standard. ( People v. Hughes (2002) 27 Cal.4th 287, 330.) Here, defendant’s Pitchess motion sought complaints against the named officers “relating to acts of aggressive behavior, viol ence, excessive force, or attempted violence7 or excessive force, racial bias, gender bias, ethnic bias, sexual orient ation bias, coercive conduct, violation of constitutiona l rights, fabrication of charge s, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the use of excessive force, plan ting of evidence, false or misleading internal reports including but not limite d to false overtime or medi cal reports, and any other evidence of misconduct amounting to mora l turpitude within the meaning of People v.

Wheeler (1992) 4 Cal.4th 284 . . . .” Counsel’s declaration asserted that the police report,

attached to the motion as an e xhibit, was “falsified and untr ue.” Specifically, the police report states that Acosta told Ramirez he saw defendant placing UPS boxes, computer

monitors and other items into Acosta’s bac kyard shed, late at night and that he was “concerned that these items may be stol en.” According to the police report:

“Mr. Acosta stated he has told the su spect on several occasions to take the items out of the shed, but the suspect ha s refused. The susp ect placed a lock on the shed and secured it. Mr. Acosta stated no one in the fam ily has access to the shed or the lock othe r than the suspect. “. . . Mr. Acosta verified the in formation given to [Escobedo and Valenzuela] by Deputy Ramirez. Mr. Acos ta told [Escobedo and Valenzuela] he wants the suspect out of the property and do es not want him to return there. . . . Mr. Acosta asked us if he could open th e shed. We advised Mr. Acosta the shed belonged to him and it was up to him if he wanted to open it. Mr. Acosta went inside his house and retrieved bolt cutters. . . . “Mr. Acosta used the bolt cu tters to cut the lock off the shed and opened the door. . . . Mr. Acosta . . . allowed us to search the shed. . . . [¶] . . . “. . . Mr. Acosta told [Escobedo and Valenzuela] he saw the suspect carrying the UPS boxes and placing them inside the shed sometime during the evening the night be fore. . . . ”

According to counsel’s declar ation, the true facts are that Acosta told the deputies

that he did not know what wa s in the shed, which was used by several members of the household, including defendant. Counsel’s declaration states: “Mr. Acosta . . . [stated] he would like to have [the shed] back (in order to store his own personal items inside). Depu ties asked Mr. Acosta if he had a key, to which he replied he did not. Deputie s asked Mr. Acosta if they could break open the lock and search the shed. Deputies specifically told Mr. Acosta that if he8 did not give them permissi on, they would go and get a search warrant and end up searching it anyways. Mr. Acosta agreed that the de puties could search the shed and gave them a pair of bolt cutters to gain access. “Mr. Acosta never informed the depu ties that he personally observed [defendant] carrying UPS boxes, computer monitors, and other unknown items. Mr. Acosta never stated that [defendant] has sole access to th e shed, or that he personally observed [defendant] place a lock on the shed doors. Furthermore, Mr. Acosta never informed the deputies that he was concerned that there were stolen items inside the shed. Mr. Acosta neve r informed the deputies that he had a conversation with [defendant] to re move stolen items from the shed. “[Defendant] denies that when Deput y Sanchez came to Mr. Acosta’s home, he was hiding (and covering his face with a stuffed animal).” (Italics added.)

The trial court denied the motion, explai ning that defendant ha d not set forth any “specific facts showing good cause to grant [t he motion]. [¶] [Aco sta] testified at a hearing that he opened the shed . . . . That he didn’t feel forced to open the shed. [¶] And as to some of the deputies that you named, they didn’t author reports and overall, I think the declaration doesn’t provide good cause to allow an in -camera hearing.”

We find no abuse of discretion in the tr ial court’s conclusion that defendant did not meet his burden of (1) proposing a defense to the pending charges; and (2) describing a factual scenario supporting the claimed officer misconduct. On the contrary, consistent with Acosta’s preliminary he aring testimony, counsel’s decl aration states that Acosta agreed that the officers coul d search the shed. The only disputed facts are whether Acosta told the officers that he suspected de fendant was storing stolen goods in the shed and whether other family members used the shed . But these inconsistencies are irrelevant to the issue of consent, which was the only issue upon which defendant’s section 1538.5

motion was based.9 DISPOSITION

The judgment is affirmed.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.